FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otero & Kasun [2023] FedCFamC2F 527
File number(s): PAC 4142 of 2021 Judgment of: JUDGE MYERS Date of judgment: 8 May 2023 Catchwords: FAMILY LAW – parenting proceedings. Legislation: Family Law Act 1975 (Cth), ss 60CC, 65DAA(3), 65DAA(5)
Mental Health (Forensic Provisions) Act (NSW) s 32
Cases cited: A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF [1999] HCA 26; 199 CLR 160; 73 ALJR 927 163 ALR 501; (1999) FLC ¶92–852; 24 Fam LR 756
Wagstaff & Wagstaff [2021] FedCFamC2F 507
Division: Division 2 Family Law Number of paragraphs: 129 Date of hearing: 2-4 August 2022, 8-9 November 2023 Place: Parramatta Counsel for the Applicant: Mr Cohen Solicitor for the Applicant: Gonzalez & Co Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Ms Carter Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 4142 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OTERO
Applicant
AND: MS KASUN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1.That the mother has sole parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”) and for that purpose:
(a)before the mother makes any major long term decision in respect of the children, the mother will:
(i)provide the father with all relevant information and documentation in relation to the issue;
(ii)inform the father in writing of her proposal for the children, including the reason(s) why she believes the proposal is in the children’s best interest;
(iii)provide the father with any name and contact details as may be relevant; and
(iv)give the father at least seven (7) days to consider the mother’s proposal and respond, before the mother proceeds with her proposal; and
(v)if the father responds within seven (7) days of receipt of the mother’s proposal, the mother will consider the father’s views and advise him of either her acceptance or rejection of the father’s views.
2.That the children live with the mother in City B.
3.Subject to the father’s compliance with Order 6 below, and after completion of 6 months of family therapy with C Family Centre in accordance with order 7 below, the children spend time with the father by agreement and failing agreement as follows:
(a)Commencing the last weekend of the calendar month in which the Court makes these orders, the children spend (6) supervised visits with the father for three (3) hours each with such time to occur on both the Saturday and Sunday of the last weekend of the calendar month and at a place and time to be agreed upon by the parties with such time to occur within a 15 km radius of the Melbourne Central Business District with the cost of such supervision to be shared equally by the parties.
(b)Thereafter,…
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CaseChat Overview and Summary
Judge Myers concluded that it was in the best interest of the children for the mother to have sole parental responsibility, while the father would have significant visitation rights subject to certain conditions. The court mandated that the mother must consult with the father on any major long-term decisions concerning the children, providing him with relevant information and giving him a week to respond. The children were to reside with the mother in City B, with the father having supervised visitations initially, followed by unsupervised visits contingent on his compliance with mental health treatment. The visitation schedule was designed to gradually increase the father's time with the children, starting with supervised visits and moving to more extended periods during school holidays. Additionally, the court ordered family therapy for all parties to facilitate the relationship between the children and their father.
The court's orders reflect a careful consideration of the children's needs, ensuring a structured yet flexible arrangement that prioritises their welfare while allowing for meaningful engagement with both parents. The final orders detail specific provisions for parental responsibility, residence, visitation, communication, and the conditions under which the father's time with the children would be permitted.
Orders
Orders of the court
PAC 4142 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR OTERO
Applicant
AND:
MS KASUN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1. That the mother has sole parental responsibility for the children X born in 2015 and Y born in 2016 (“the children”) and for that purpose:
(a) before the mother makes any major long term decision in respect of the children, the mother will:
(i) provide the father with all relevant information and documentation in relation to the issue;
(ii) inform the father in writing of her proposal for the children, including the reason(s) why she believes the proposal is in the children’s best interest;
(iii) provide the father with any name and contact details as may be relevant; and
(iv) give the father at least seven (7) days to consider the mother’s proposal and respond, before the mother proceeds with her proposal; and
(v) if the father responds within seven (7) days of receipt of the mother’s proposal, the mother will consider the father’s views and advise him of either her acceptance or rejection of the father’s views.
2. That the children live with the mother in City B.
3. Subject to the father’s compliance with Order 6 below, and after completion of 6 months of family therapy with C Family Centre in accordance with order 7 below, the children spend time with the father by agreement and failing agreement as follows:
(a) Commencing the last weekend of the calendar month in which the Court makes these orders, the children spend (6) supervised visits with the father for three (3) hours each with such time to occur on both the Saturday and Sunday of the last weekend of the calendar month and at a place and time to be agreed upon by the parties with such time to occur within a 15 km radius of the Melbourne Central Business District with the cost of such supervision to be shared equally by the parties.
(b) Thereafter, the father spend time with the children in City B once per month from 11:00am Saturday to 5:00pm Sunday for a period of four (4) months.
(c) Thereafter, the children will spend time with the father during the school holiday periods as follows:
(i) in the terms 1, 2 and 3 school holidays, for the second week with the father at his residence as long as such residence is within the Commonwealth of Australia.
(ii) In the first term 4 holiday period after the children have had 4 overnight visits with the father in accordance with Order 3(c) the children spend time with the father for 10 nights as agreed between the parties and if not agreed, for (10) nights commencing on the first Monday of January.
(iii) In the proceeding term 4 holiday periods, the children spend time with the father for the second half of the term 4 school holiday periods.
(iv) For the purposes of these Orders, the parties each share the costs of the children’s flights to and from Sydney for the purposes of the children’s time with the father and changeover on such occasions is to take place at the arrivals gate of Sydney Domestic Airport and/or Melbourne domestic airport.
4. That in order to facilitate the child spending time with the mother in accordance with Order 3 above, the parties shall attend to the following:
(a) Both parties shall follow all reasonable requests and directions given by the nominated supervision service;
(b) The parties be equally responsible for all costs payable to the nominated supervision service including the costs of obtaining contact reports; and
(c) Both parties shall complete and return to the nominated supervision service all intake/enrolment paperwork within seven (7) days of receiving same.
5. Commencing in the first week following the children’s first visit with the father in accordance with Order 3(a) the children shall communicate with the father via Skype/Zoom with the father to initiate the calls as follows:
(a) Each Monday, and Thursday from 5:30pm until 6:00pm; and
(b) The mother do all things reasonably necessary to ensure the children are provided with a device on which the calls can take place and the children are provided with privacy for the duration of their call.
6. The father’s time with the children be conditional upon his compliance with the following:
(a) That within 14 days the father shall attend upon his current mental health provider.
(b) The father shall do all things reasonably necessary to obtain a written report/letter from the abovementioned mental health provider as to whether the father requires further treatment including Anger Management Counselling and if so, the frequency of same and confirmation that the father is compliant with any treatment he may be undergoing with that mental health provider. The father shall provide the said mental health practitioner a copy of these orders, reasons for decision and a copy of the Family Reports dated 6 October 2022 and 4 March 2022. The report/letter shall acknowledge that the author has been provided with and read these orders, reasons for decision and the said Family Reports.
(c) On receipt of the report/letter referred to in Order 6(b) above, the father shall provide to the mother or her legal representative a copy of the report. The mother shall be and is hereby authorised to communicate with the father’s mental health provider and request reports (not more than once every 6 month period) as to the father’s compliance with any treatment that is recommended by the nominated mental health provider.
(d) The father shall continue to be compliant with any treatment that is recommended by the nominated mental health provider.
(e) In the event the father is not compliant pursuant to Order 6(b) and Order 6(d) above, the father’s time shall be suspended until such time that he furnishes evidence of compliance with any treatment that is recommended by the nominated mental health provider.
7. That the parties do all things necessary to forthwith engage the children and themselves with C Family Centre (D Street, City B VIC) for the purpose of engaging in family therapy with a view toward re-establishing their relationship with their father as follows:
(a) The parties shall do all acts and things and sign all documents as are requested by C Family Centre to give effect to these orders.
(b) Despite Order 3 above that after a period of 3 months subject to the recommendations of the therapist engaged by the parties at C Family Centre the children shall recommence spending time with their father at times and frequency and upon such conditions as recommended by C Family Centre.
(c) That the Independent Children’s Lawyer copy and provide to C Family Centre a copy of these orders, reasons for decision, a copy of the Family Reports dated 6 October 2022 and 4 March 2022 and a copy of the subpoenaed material produced by E Services as background material to assist them in providing family therapy to the parties and the children.
(d) That the parties shall equally pay the costs of C Family Centre providing its services in accordance with these orders.
8. That the parties shall ensure the other party is notified of any serious injury or illness or medical emergency in relation to the children, or any of them, as soon as practicable via text message.
9. The mother and father and their servants and agents are restrained from:
(a) Discussing these Orders or matters related to the parenting proceedings with the children;
(b) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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